Austin Turner

Austin Turner concentrates his practice in the areas of land use and environmental law and is admitted to practice in all Florida state courts. He counsels clients on land use entitlements, such as comprehensive plan amendments, rezonings, DRIs, variances, and other matters which commonly arise for property owners. Austin also assists clients regarding legal issues relating to property contamination and regulations for surface or ground water. He advocates on behalf of clients before agencies including the Department of Economic Opportunity, Florida Department of Environmental Protection, and the U.S. Fish and Wildlife Service.

Prior to joining Henderson Franklin, Austin served as a summer associate in 2014 and also worked as a law clerk at a large land use and environmental law firm located in Tallahassee, Florida. Austin also spent time during law school at the Florida Department of Environmental Protection working at the Defense Section of the Office of General Counsel, for which he was recognized at his graduation ceremony with a certificate for his distinguished pro bono services.

Before graduating summa cum laude from Florida State University College of Law, Austin was inducted into Phi Delta Phi, a legal honors society. He was also the recipient of eight book awards, which are provided to students who earn the highest grade in their class. In his final year of law school, Austin was chosen to become a member of his local chapter of the American Inn of Court, a prestigious group whose mission is dedicated to fostering professionalism and civility in the practice of law.

As of January 1st of 2017, it has been reported that the total value of real property in Lee County increased for the fifth consecutive year to $105.6 billion (nearly 9% higher than 2016 values).

With this year’s Truth in Millage (“TRIM”) Notices just around the corner (typically mailed by the Lee County Property Appraiser in mid-August), one recent legal opinion highlights the nuances of remedies available to the property owner—and the Property Appraiser—in the event assessed values are contested.

Background on Florida’s “Save Our Homes” Doctrine

For real property that has been classified as a “homestead” in Florida, the Save Our Homes provision of Section 193.155(1), Florida Statutes, allows for an annual increase of only 3% in the assessed value of property, or the yearly increase in the Consumer Price Index (CPI), whichever is less. Moreover, under 193.155(2), Florida Statutes, if the capped value exceeds the market value in a given year, the capped value will be reduced to the market value.

With Florida’s 2017 Regular Session officially adjourned on May 8, 2017, only 203 bills (of the total 1,606 general bills filed) survived both chambers of the Legislature.

From the handful of legislation that ultimately passed this year, Joint Resolution CS/HJR 21 was enacted. This resolution proposes an amendment to the State’s Constitution that would limit a local government’s authority to assess non-homestead real property for purposes of ad valorem taxation.

Background

Under Florida’s Constitution, ad valorem taxation is expressly reserved to local governments. The state is prohibited from levying ad valorem taxes on real and tangible personal property.

When preparing an annual assessment, the State Constitution also generally requires that all property be assessed at just value (i.e., market value) on January 1st of each year. Thereafter, such assessments are used to calculate property taxes to fund counties, municipalities, district school boards and certain special districts.

Over the past several years, hydraulic fracturing (or “fracking”) has become a very divisive environmental and political issue in many areas of the country. As our society’s desire for cleaner energy has become more of a priority, lawmakers and agencies at federal, state, and local levels have been confronted with determining whether and to what extent the use of hydraulic fracturing methods should be regulated, and whether such activities pose a potential threat to our drinking water sources.

What is Fracking?

Developed in the 1940’s, hydraulic fracturing is a method to extract conventional oil and gas resources found in permeable sandstone and carbonate reservoirs by drilling vertically into rock formations and injecting fluids under high pressures.

For those of you who missed it, Thursday’s 2017 Commercial Real Estate Outlook Conference offered exciting sneak peeks into new, major downtown Fort Myers developments, insightful discussions on the impacts technology and millennials are having on the real estate industry, and a general feeling of optimism toward 2017’s real estate market.

While blogging etiquette won’t allow me to recount all of the intriguing insights offered by the expert presenters, here are a few takeaways:

On the heels of Donald J. Trump’s Presidential Inauguration, Lawrence Yun, Chief Economist for the National Association of Realtors, forecasted that over the next year there will be almost no reason to worry about another housing market bubble and opined there will be less than a 5% chance of another national recession (according to numerous economic indicators). In addition, Dr. Yun explained that he anticipates a slight rise to our Country’s GDP under the new administration, from a recently “sluggish” average of 2%, to approximately 2.2%.

The landscape of downtown Fort Myers is about to significantly change over the next few years as Mainsail Lodging and Development puts in a hotel and overhauls the Harborside Event Center, Dwell Florida erects The Place on First – a high-rise luxury condo and retail development on the corner of First Street and Jackson Street, and Fischler Property Company constructs First Street Village – a live, work, and play development on the corner of West First Street and Altamonte Avenue.

To meet the non-traditional demands of the up and coming millennial workforce, office environments are steadily deemphasizing large individual offices in favor of smaller individual spaces and more, larger collaborative work spaces.

While emerging technologies are certainly changing the way commercial real estate business is done, inventors haven’t found a way to replace the investor’s desire to make a personal connection with a live, local realtor before signing on the dotted line.

Thank you to all of this year’s speakers for their useful insights into the 2017 real estate market and to Bev Larson, CCIM for producing such a great event. We look forward to Commercial Real Estate Outlook 2018!

As 2016 closes, we reached out to our team and asked them to share some of the most notable issues in real estate and land use & environmental law:

Residential Closing Best Practices Requirements by Amanda Barritt

2016 saw the CFPB regulations and Best Practices requirements move into high gear with respect to financed residential closings. Lenders, attorneys, and title companies have invested a lot of time and money coming into compliance. However, the results of the national election, along with the ruling in the case, PHH Corporation v. CFPB, are causing these players to question whether any, or all, of the CFPB lending regulations will be done away with. For now, Melissa Murphy, Senior Vice President and General Counsel of the Attorney’s Title Fund, suggests slowing down on making significant investments in Best Practices, while continuing to make sure to comply carefully with RESPA, Section 8(c) requirements as to affiliated business arrangements until we see what happens in 2017.

Condo & HOA: Fire Sprinkler Retrofitting by Molly Maggiano

As the year winds down to an end, the opportunity for condominium associations to opt-out of fire sprinkler retrofitting is also coming to a close. The subject of fire sprinkler retrofitting proved to be a hot topic during the course of the year, due in part to communications put out by the Florida Division of Condominiums regarding the applicability of the obligation to retrofit, which left many associations who thought they were exempt confused as to whether they were subject to retrofitting, whether they should conduct an opt-out vote, and the implications of such a vote. This resulted in an abundance of frantic calls to association attorneys who were also dismayed and left to wonder whether the Division would clarify its statement. Thankfully, the Division did correct its communications, but the ordeal emphasized the importance and benefits of having a qualified association attorney on hand in crucial situations such as this.

2016 Significant Foreclosure Decisions by Shannon Puopolo

Foreclosure filings continued to decline in 2016. Notwithstanding, some significant foreclosure decisions came out this year. Below is my “Top 3” List:

The Florida Supreme Court affirmed the decision of the Fifth District Court of Appeal in Bartram v. U.S. Bank, N.A., holding that where an initial foreclosure lawsuit is dismissed by the court, such dismissal does not trigger the application of the 5-year statute of limitations, which would otherwise preclude a lender from filing a second action. Rather, the court held the lender is only prevented from suing on installment payments that are more than 5 years old.

The Eleventh Circuit Court of Appeals held in Failla v. Citibank, N.A. that where debtors file a statement of intent to surrender their residence in Chapter 7 bankruptcy, they must also waive any defenses or counterclaims raised in a pending state court foreclosure action.

The Fourth District Court of Appeal held in Ober v. Town of Lauderdale-by-the-Sea that the lis pendens statute does not discharge liens that are recorded and based on conduct which occurs after the date of the final judgment of foreclosure, even if such liens attach to the real property prior to the date of the foreclosure sale.

Land Use Law by Austin Turner

It was an exciting year for land use and environmental law at both a state and local level. On January 21st, CS/CS/SB 552 was enacted to comprehensively address issues such as Everglades restoration. In response to threats like the Lake Okeechobee algae blooms and the Zika virus, the Governor declared several States of Emergency which led to permit extensions. Recently, a supermajority of Florida voters approved one of the two renewable energy measures establishing a constitutional ad valorem tax exemption for solar power. Locally, Lee County residents approved a non-binding referendum for Lee County’s land acquisition and stewardship program, “Conservation 20/20.”

On behalf of the Real Estate and Land Use team at Henderson Franklin, we wish you and yours a very Happy Holiday season and New Year. Please enjoy our 2016 e-card benefitting the Golisano Children’s Hospital of Southwest Florida:

For those unfamiliar with the program and its history, the Lee County (the “County”) Conservation 20/20 program functions as the County’s environmental acquisition and management program that was established to protect our local drinking water, provide nature-based recreational opportunities, protect areas from flooding and provide wildlife habitat.

The Conservation 20/20 program was originally created on July 31, 1996, when the Board of County Commission (the “BOCC”) adopted Ordinance No. 96-12, which created a “Land Committee” to assist in implementing the “Lee County Conservation Land Acquisition and Stewardship Program.” Thereafter, the 20/20 program was substantially amended by Ordinance No’s 96-12, 05-17, and 13-09. Ordinance No. 15-08 was the most recent amendment, which establishes a 15 member appointed citizen’s advisory committee called the “Conservation Lands Acquisition and Stewardship Committee” (CLASAC). CLASAC is tasked with the responsibility of advising the BOCC regarding the acquisition, restoration, improvement and management of conservation lands to meet its enumerated objectives and duties.

It is important to emphasize that, following the adoption of Ordinance No. 15-08, any changes to the County’s 20/20 program must be approved by a “super-majority” vote of the entire BOCC.

Following two recent incidents, a new emergency rule has been enacted in Florida to ensure that the public, local governments and the Department of Environmental Protection (“DEP”) are notified by all responsible parties following a pollution incident.

Background

On August 28, 2016, Mosaic Fertilizer (“Mosaic”) notified DEP of suspected damage to a gypsum stack liner located at its New Wales Concentrate Plant, which ultimately created a sinkhole that released processed water into the underlying groundwater. While DEP responded to the site within 24 hours to assess potential response actions, the public did not learn of the issue until three weeks later. Also, although DEP reports indicated that no contamination had migrated off-site and therefore no public notification was required under the applicable Florida regulations, many residents remained concerned about the mere possibility of off-site contamination and the timeliness of Mosaic’s public notice.

Thereafter, on September 7, 2016, unauthorized discharges of domestic wastewater were released into Tampa Bay by facilities operated by the City of St. Petersburg, in Pinellas County. Similar to the Mosaic sinkhole, the public and environmental stakeholders expressed concerns about the accuracy and timeliness of information provided to the public by City officials.

On October 3, 2016, in response to a five-day forecast from the National Hurricane Center for Hurricane Matthew, a major storm which is expected to impact large portions of the east coast, the Governor issued Executive Order Number 16-230 declaring a 60 day State of Emergency throughout every Florida county.

Legal Authority for State of Emergency Permit Extensions

As I have explained in recent blog posts, Section 252.363, Florida Statutes, provides that certain qualifying permitees are entitled to extensions following a declared State of Emergency for the amount of time the declaration was in effect, plus an additional six (6) months. In order to obtain such an extension under this statute, permitees are required to submit a written notification to the appropriate authorizing agency (i.e., City, County, Florida Department of Environmental Protection (FDEP), or Water Management District) within 90 days after the State of Emergency has expired.

Under Section 252.363, Florida Statutes, qualifying permitees are entitled to extensions following a declared State of Emergency for the amount of time the declaration was in effect, plus an additional six (6) months.

In order to obtain such an extension under this statute, permitees are required to submit a written notification to the appropriate authorizing agency (i.e., City, County, Florida Department of Environmental Protection (FDEP), or Water Management District) within 90 days after the State of Emergency has expired.

On August 24, 2016, the Fourth District Court of Appeal issued an opinion in Ober v. Town of Lauderdale-by-the-Sea, No. 4D14-4597, 2016 WL 4468134 (Fla. 4th DCA August 24, 2016) that is likely to have broad implications on Florida’s foreclosure process and negatively impact investor interests in distressed real estate. Moving forward, from a land use perspective, the case should also serve as a cautionary tale and reminder about the importance of a prospective buyer’s due diligence.

Background

The genesis of the case began on November 26, 2007, when a lis pendens was recorded on a property as part of a foreclosure proceeding against a homeowner. Thereafter, a bank obtained a final judgment of foreclosure on the property in September of 2008. Several years following the final judgment, a real estate investor, Ober, purchased the property on September 27, 2012 at a judicial sale.

The crux of the case revolved around seven (7) separate code enforcement liens that had been recorded on the property by the Town between the dates of July 13, 2009 and October 27, 2011, all stemming from violations that occurred after the final judgment was entered. Finally, in 2013 the Town began to impose three more liens on the property in relation to the earlier violations.

In an attempt to strike the liens against his property, Ober filed an action to quiet title in civil court. In response, the Town filed counterclaims to foreclose the ten (10) liens, which were later approved by the trial court in its final judgment that was entered against Ober.

According to the Ober Court, Florida’s Lis Pendens Statute Does Not Apply to Liens Recorded Between Final Judgment and the Judicial Sale

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About this Blog

Since 1924, the real estate and land use attorneys at Henderson Franklin have offered our clients guidance in matters of transactional real estate and development, community association law, real estate litigation, eminent domain, land use and environmental law.

ABOUT THE REAL ESTATE PRACTICE

Since 1924, the real estate and land use attorneys at Henderson Franklin have offered our clients guidance in matters of transactional real estate and development, community association law, real estate litigation, eminent domain, land use and environmental law.

About the Land Use Practice

Attorneys in this practice area represent both private and public interests in matters of land use and environmental law, permitting, zoning, litigation and related legal matters.Read More